Curdy v. Stafford

• Decision Date: 25 March 1895
• Parties: CURDY et al. v. STAFFORD et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

30 S.W. 551

CURDY et al. v. STAFFORD et al.¹

Supreme Court of Texas.

March 25, 1895.

Error to court of civil appeals, Third supreme judicial district.

Action to try title by Carry Stafford and others against W. W. Curdy and others. A judgment for plaintiffs was affirmed by the court of appeals (27 S. W. 823), and defendants bring error. Reversed.

J. P. Ledbetter and H. C. Randolph, for plaintiffs in error. Guion & Truly, for defendants in error.

GAINES, C. J.

This suit was brought by the defendants in error to recover of the plaintiffs in error a tract of land consisting of 960 acres, which was patented to one L. C. Cunningham as assignee by virtue of a bounty warrant issued to Robert B. Owens. The plaintiffs below recovered a judgment, which was affirmed in the court of civil appeals. 27 S. W. 823. Both parties claimed title under Cunningham, the patentee, — the plaintiffs below by virtue of a deed executed by Cunningham to them, and dated May 14, 1892; the defendants under a conveyance executed May 29, 1872, from one Rowand, as assignee of the estate of L. C. Cunningham in bankruptcy, to one Levine. The deed from Cunningham to plaintiffs contained this recital: "This deed is a substitute for a deed made heretofore, in which the situation of the land was not properly described." The conveyance was objected to by the defendants upon the ground, in substance, that it was irrelevant; and it is now insisted that it was incompetent to convey title by reason of the fact that it showed upon its face that a former conveyance of the land had been made by the grantor. To the proposition we cannot assent. The deed passed the title of the grantor to the grantees by estoppel, if not as a direct conveyance. The deed for which this was intended as a substitute was doubtless a conveyance to the grantees or to W. D. Stafford, the deceased husband of Mrs. Stafford, and the father of the other grantees. The defendants, in connection with other conveyances antecedent and subsequent, offered in evidence the deed from Rowand, assignee to Levine, which was objected to upon the grounds: First, because it is void for uncertainty of description; second, because no authority was shown for its execution; and, third, because no title was shown back of the deed. The deed was excluded by the court on account of the vagueness of the description. That description is as follows: "All the right, title, and interest which L. C. Cunningham had and claimed in and to a part of bounty warrant No. 2,930, for 1,280 acres of land, issued to Robert B. Owens, April 13, 1838, by B. E. Bee, secretary of war, to have and to hold unto him, the said G. W. Levine, his heirs or assigns, forever, all the aforesaid right, title, and interest, which the said L. C. Cunningham had and claimed in and to a part of the above-described bounty warrant." The language of a deed is the language of the grantor, and, if there be a doubt as to its construction, it should be resolved against him. Again, if an instrument admit of two constructions, one of which would make it valid, and the other of which would make it void, the former must prevail. An instrument which purports to convey "a part" of a certain designated tract of land, but which does not describe that part, is void for uncertainty. But one which purports to convey that part of a certain tract which is owned and claimed by the grantor is not void upon its face, for it may be shown by extrinsic evidence what particular part the grantor so owned and claimed. So a description of the thing conveyed as the interest had and claimed by the grantor in a part of certain land is capable of being made certain because it points out the part conveyed as the part in which the interest is owned and claimed. Besides, since a land certificate is capable of division only by a separate appropriation by one or more of the owners of a tract or tracts of land in his own individual right, by virtue of his own interest in the certificate, it would seem that when we speak of a part owner's interest in a part of a certificate we necessarily mean all his interest in the part owned by him. But, even if the description in question admits of the construction that it means Cunningham's interest in an undefined part of the certificate, it may also, without doing violence to the language, be construed to mean the part which he owned and claimed, and that construction should be adopted which would give effect to the conveyance, rather than that which would destroy it. We conclude that the objection on the ground of uncertainty in the description cannot be maintained.

It is sufficient to say, as to the third ground of objection to the deed, that it was not necessary for the defendants to show title in Cunningham. He was the common source of the titles of both parties, and it was sufficient for defendants to establish an older title as emanating from that source.

The second objection presents a more serious question. The bankrupt act of 1867 provides that "a copy duly certified by the clerk of the court under the seal thereof of the assignment made by the judge or register, as the case may be, to him as assignee, shall be conclusive evidence of his title as such assignee to take, hold, sue for, and recover the property of the bankrupt." Section 14 of the article of March 2, 1867. Whether this was intended or not to apply to suits other than those in which the assignee should be a party we are not prepared to say, and we find it unnecessary to decide the question. In connection with the...